Powers v. City of Yonkers

• Court: New York Court of Appeals Court of Appeals
• Citation: Powers v. City of Yonkers , 114 N. Y. 145, 21 N. E. 132 (N.Y. 1889)
• Decision Date: 16 April 1889
• Parties: POWERS v. CITY OF YONKERS, Impleaded.

114 N.Y. 145

21 N.E. 132

POWERS

v.CITY OF YONKERS, Impleaded.¹

Court of Appeals of New York, Second Division.

April 16, 1889.

Appeal by the defendant, the city of Yonkers, from a judgment of the general term of the supreme court in the Second judicial department, osum of $10,550, less 10 per cent. thereof, affirming a judgment entered upon the decision of the court at special term. On the 18th of August, 1883, the defendant George B. Valentine entered into a contract with the city of Yonkers, a municipal corporation, for grading, curing, and otherwise improving Walnut street, in that city, according to certain plans and specifications. Said Valentine agreed to finish the work within 100 days from August 28, 1883, and upon its completion the city agreed to pay him the sum of $10,550, less 10 per cent. thereof, which was not payable until six months after the work was finished and duly accepted. It was provided, however, that the common council might, at its option, cause payments to be made, as the work progressed, to an amount not exceeding 80 per cent. of ‘the full value of the work done,’ but that the exercise of such option should not be deemed to be inconsistent with any of the terms of the instrument, ‘or in any manner change their force and effect.’ It was further provided that it should be the duty of the city engineer to report to the common council whenever the contractor should refuse or neglect to supply a sufficiency of workmen of proper skill, and materials of proper quality, or should fail in any respect to prosecute the work with faithfulness, promptness, and diligence, or should omit to fulfill any provision of the contract; that, if the common council should be satisfied that such report was correct, it should have power to declare the contract ‘to be voided and forfeited, broken and violated,’ by the contractor, and the right to employ other persons to finish the work according to the plans and specifications, to charge the expenses thereof to him, and to deduct the amount out of any moneys otherwise payable to him. Valentine commenced to perform the contract about August 24, 1883, but before the limit of 100 days had expired he was directed by the city engineer, who, according to the contract, had charge of the work for the city, to suspend until certain obstacles, for which the contractor was not responsible, had been removed. On the 14th of September, 1885, while the contractor was engaged in performing his part of the agreement, the engineer in charge reported to the common council that the time provided for the completion of the contract had long since expired, and that the contractor had neglected to perform it in certain respects. Upon the same day the common council, by resolution, directed that notice be given to the contractor and his sureties that, unless they should resume the work required by the contract, and prosecute the same with diligence, and promptness, the city, pursuant to the provisions of the contract, would consider it ‘violated, broken, voided, and forfeited,’ and would employ other persons to finish the work required by the contract, and that the expense thereof would be charged against the contractor, and deducted from the contract price. Notice was given to the contractor accordingly, and on the 28th day of September, 1885, the common council adopted a resolution, which, after reciting certain facts, declared that said contract was broken, violated, and forfeited by the contractor, and directed the committee on streets to procure the necessary materials, and the street commissioner to furnish the labor required by the contract, so as to fully execute and perform the same in every respect, and that they keep an accurate account thereof, and report the same to the common council, so that it might be charged against the contractor. Thereupon the work was completed by the city, and some of the work done by the contractor was taken down and rebuilt. No notice was given to him by the city to take down or rebuild or otherwise change any of the work that he had done. While the contractor was engaged upon the contract he was paid by the common council, upon various certificates of the engineer, the sum of $8,186 in all, but according to one of the stipulations no certificate given or payment made under the contract was to be held to be an admission by the city that any part of the contract had been complied with, or that any detail of the work had been properly performed, in case the fact should be otherwise. The plaintiff and many of the defendants, as subcontractors under Valentine, or as laborers and material-men, acquired liens upon the moneys due and to grow due from the city under said contract, pursuant to chapter 315 of the Laws of 1878. This action was brought by the plaintiff to foreclose his lien, and all of the other lienors were made parties, as required by section 7 of said act. The city, by its answer, after setting forth the facts, alleged that it expended in the completion of the contract the sum of $1,828.40, and that the balance due the contractor, after deducting this sum, was $215.60, which it was willing to pay into co...